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Like a country preacher stirring up his congregation with a fire-and-brimstone sermon, Modesto prosecutor James Brazelton invoked God’s will 13 years ago while arguing for the death penalty in a 22-year-old man’s double-murder trial. He spoke about the Almighty’s wrathful vengeance on killers and cited scripture from Genesis, Exodus and Romans that promised swift and lethal justice for those who take a life. “Whoever strikes another man and kills him shall be put to death,” Brazelton, now the district attorney of Stanislaus County, paraphrased one verse. “If a man has the presumption to kill another by treachery, you shall take him even from my altar, to be put to death.” Jurors followed Brazelton’s commands and sent Michael Corey Slaughter to San Quentin’s death row. Two years ago — over a vigorous dissent — the California Supreme Court affirmed, saying the statements were improper, but harmless. Now, Slaughter’s habeas corpus case is pending before the court, and Palo Alto solo practitioner John Schuck III has renewed objections to Brazelton’s statements, calling them “extremely prejudicial.” “Biblical arguments have absolutely no place in criminal trials,” he says. “Jurors are supposed to decide on the facts of the case and not on their or others’ religious beliefs.” Brazelton couldn’t be reached, but closing arguments similar to his — relying on scripture and playing on Christian jurors’ beliefs — are fairly common in death cases. There are recorded instances all over the country — in big cities and small towns, in rural realms and urban areas. Often dubbed the “eye for an eye, tooth for a tooth” argument, the strategy is popular with prosecutors to help fence-riding jurors rely on faith and, thereby, avoid feeling personally responsible for sending accused murderers to their deaths. “In the last 15 years, nearly 100 reported capital cases involved challenges to a prosecutor’s religiously oriented remarks, and the numbers are not decreasing,” Cornell Law School professors John Blume and Sheri Johnson wrote in a 2000 law review article. “Moreover, in most jurisdictions, given the virtually uniform lack of success of these challenges, there must be many more cases in which prosecutors make such remarks without challenge because the defense attorneys know that a challenge is futile.” Almost every court that has dealt with the issue — including the California Supreme Court — has clearly condemned the practice, saying religious invocations violate the accused killer’s rights to a fair trial. Yet prosecutors continue to invoke the Bible because most courts find the statements harmless error. Only Pennsylvania courts automatically reverse for religious arguments and make their use a possible disciplinary violation. “Without an effective remedy, without a reversal,” says Cornell Law School professor Stephen Garvey, an authority on the subject, “there’s no tangible consequence to prosecutors continuing using these arguments.” ‘HIGHER LAW’ Religious beliefs have always permeated death cases, particularly during deliberations, as jurors debate their life-and-death decision and instinctively, in many cases, fall back on their basic beliefs. In fact, many states, including California, advise jurors to use their own conscience and the conscience of the community in reaching a decision. “It raises all those questions of faith in public life,” Garvey says. “What are you supposed to do? Tell people they can’t rely on their most basic convictions to reach a judgment?” Dennis Maio, who for many years oversaw death cases as a staff attorney for the California Supreme Court, says it’s not unexpected in such an “apocalyptic battleground” for jurors to rely on faith. “This is about as close as human justice gets to divine justice,” he says. And that’s not very close, suggests Lance Lindsey, executive director of the San Francisco-based Death Penalty Focus. He and Robert Parham, executive director of the Nashville, Tenn.-based Baptist Center for Ethics, find plenty of all-too-human error in prosecutors’ tendency to quote selectively from scripture. They note that the Bible authorizes the death sentence not only for murder, but also for dozens of other reasons, including blasphemy, stealing goats, getting raped in a city and rebelling against one’s parents. “Why do those who claim the Bible mandates the death penalty for murder ignore all the nonmurder offenses?” Parham asks. Defense lawyers sometimes play the religion card, too, citing Christ’s references to mercy, such as, “Judge not, that ye be not judged,” and stopping a stoning by admonishing, “He that is without sin among you, let him first cast a stone.” But many believe that seeking forgiveness is far different than playing on jurors’ beliefs to win a death penalty conviction. “Most people are moved greatly by religion, and these kinds of arguments will move them,” says Maio, of counsel in Reed Smith’s San Francisco office. “But what we’re afraid of is that rather than turn to religion for comfort, they’ll rely upon this argument to wash their hands like Pontius Pilate,” who claimed no role in Christ’s crucifixion. The comparatively few times that courts have overturned death verdicts for religious arguments occurred when the statements were part of a larger series of violations or were so over the top that they were considered a constitutional transgression. The latter usually are considered a violation of the establishment clause or the due process clause of the Fourteenth Amendment. Four years ago, the Ninth Circuit U.S. Court of Appeals relied on the establishment clause to reverse the death sentence of Alfred Arthur Sandoval, a former gang member convicted of four Los Angeles murders in 1984. The court found that the prosecutor — in arguing that jurors would be doing God’s will by voting for death — had encouraged the jury to disregard the legal questions before them in favor of “an asserted higher law.” “The message was clear,” Justice Mary Schroeder wrote. “Those who opposed the ordinance of God should fear the sword-bearing state, whose task, as an avenging minister of God, is to bring wrath upon those who, like Sandoval, practice evil.” On retrial, Sandoval was sentenced to life without parole. More often, however, courts will rule that the religious argument or biblical reference was such a small part of the closing statement that it amounted to harmless error. Or they will say that the defense lawyer failed to object at trial and, therefore, forfeited any right to raise the issue on appeal. Both happened in the case of Thomas Lenart, convicted of murdering a bartender in the Shasta County town of Anderson in 1993. At trial, prosecutor Michael Jones reminded jurors that while Jesus forgave one of the two thieves crucified beside him, the thief was still put to death. Defense lawyers didn’t object, but tried balancing the statement by noting that the biblical character Cain was banished, but not executed, after killing his brother Abel. The California Supreme Court affirmed the death sentence in May. While not the principal argument in Lenart’s pending habeas case, Jones’ statement was far from harmless, appellate lawyer Phyllis Quatman insists, and defense lawyers failed Lenart by not objecting. “If you give them a religious reason or a moral reason that it’s OK to kill someone, it makes people feel better about imposing the death penalty,” the partner in Whitefish, Mont.’s Quatman & Quatman says. “There were two holdouts — two who were very unsure about the death penalty — and I’m not sure if that put them over the hump or not.” NO LAW AGAINST IT Several prosecutors on the state and local levels didn’t return telephone calls about the religious arguments they either made at trial or had to defend on appeal. However, Rosalie Morton, a Sherman Oaks solo who for years was a well-known prosecutor in Los Angeles, responded. Her successful prosecution of Shawn Hill for a 1986 murder in Los Angeles was overturned in part because the state Supreme Court found her references to “an eye for an eye, a tooth for a tooth” improper. Morton says she doesn’t recall reciting the Bible. “But if I did,” she said, “so what? It’s fair game. It’s not against the law to say that.” She’s correct. There are no laws on the books prohibiting religious references in closing arguments, and the U.S. Supreme Court has never addressed the topic. Though courts continue to admonish lawyers, their frequent findings of harmless error amount to slaps on the wrist. Schuck, who’s handling Slaughter’s habeas corpus case, says trial judges have a responsibility to stop religious arguments in their tracks. “Even if an objection is made, the prosecutor has got his point across,” Schuck says. “And even if the judge says to disregard, everybody and their brother knows the jurors cannot disregard that comment.” In a dissent in Slaughter’s case, Justice Joyce Kennard, joined by Justice Carlos Moreno, called prosecutor Brazelton’s religious remarks “egregious misconduct” for suggesting that divine law demands Slaughter’s death regardless of the aggravating and mitigating circumstances. “Our courts,” Kennard said, “are not ecclesiastical courts.”

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